NO RELIEF FOR PROPERTY OWNERS

March 19, 2007

In an effort to discourage developers from building on large areas of wetland by offering them waivers to build on smaller ones without environmental reviews, the Army Corps of Engineers issued new construction rules that have upset environmentalists and developers alike, says H. Sterling Burnett, senior fellow with the National Center for Policy Analysis.

Consider:

Known as Corps "nationwide permits," the new regulations will allow some construction of homes, shops, schools and other buildings in flood plains without formal environmental reviews.

Developers would also be allowed to skip the reviews before filling in or altering the course of some small streams; formal reviews will now be required for fills greater than 300 feet along streams that flow only part of the year.

"Undoubtedly this was an attempt to comply with Court rulings striking down their previous interpretation of its power to protect wetlands, without unduly angering the powerful environmental lobby," says Burnett. "Yet environmentalists are likely to portray this as a rolling back on environmental protections, as they do with any change in the status quo that doesn't increase government's control over private property."

Ultimately, the new rules are a missed opportunity to protect property owners and may lead to a slew of lawsuits, says Burnett. Property owners will wind up back in court arguing that the new rules illegally restrict the lawful development of their property in areas that in fact have little or no connection to navigable waterways as traditionally understood. This won't help the environment but it will continue to hamper economic progress.

Source: "New Army Corps Rule Fails to Give Relief to Property Owners," National Center for Policy Analysis, March 15, 2007.